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THIRD
SECTION
CASE OF RĂCĂREANU
v. ROMANIA
(Application
no. 14262/03)
JUDGMENT
STRASBOURG
1 June
2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Răcăreanu
v. Romania,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Elisabet
Fura,
Corneliu
Bîrsan,
Boštjan
M. Zupančič,
Alvina
Gyulumyan,
Egbert
Myjer,
Luis
López Guerra,
judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 11 May 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14262/03) against Romania
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Romanian national, Mr Gheorghe Răcăreanu
(“the applicant”), on 24 March 2003.
- The
applicant, who had been granted legal aid, was represented by
Mr Adrian-Marius Mărăşescu, a lawyer practising
in Bucharest. The Romanian Government (“the Government”)
were represented by their Agent, Mr Răzvan-Horaţiu
Radu, of the Ministry of Foreign Affairs.
- On
12 May 2009 the President of the Third Section decided to communicate
to the Government the complaints concerning the conditions of the
applicant's detention, the alleged interference with his private life
and the alleged lack of fairness of the criminal proceedings
instituted against the applicant. It was also decided to examine the
merits of the application at the same time as its admissibility
(Article 29 § 3).
- The
Government's observations in the case were sent to the applicant on 8
December 2009 and he was invited to comment on them and submit his
just satisfaction claims by 19 January 2010. The Court received no
reply from the applicant within the time-limit.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1971 and lives in Bucharest.
- On
19 February 2001 the applicant was arrested by the Bucharest Police
on suspicion of drug trafficking.
The
next day he was placed in pre-trial detention by the prosecutor
attached to the Bucharest District Court.
- On
15 March 2001 the prosecutor committed the applicant for trial.
- On
19 November 2001 the District Court convicted the applicant of drug
trafficking and sentenced him to ten years and four months'
imprisonment.
- The
sentence was upheld on appeal by the Bucharest County Court (decision
of 3 April 2002) and on appeal on points of law by the Bucharest
Court of Appeal (final decision of 25 June 2002).
- On
30 August 2002 the applicant requested the revision of the judgment,
arguing that he was in possession of new relevant evidence that would
prove his innocence and that he was willing to deliver it in person
to the prosecutor. On 3 February 2003 the Bucharest District Court
declared his application inadmissible.
A. The applicant's detention
- The
applicant was held in detention from 19 February 2001 until his
release on 19 May 2009.
- Between
19 February 2001 and 4 July 2001 he was held in the detention
facilities at Bucharest Police Station. From 4 July 2001 he was
detained for the most part in Jilava Penitentiary and Rahova
Penitentiary in Bucharest. For short periods of time, from March
2008, he served his sentence in the penitentiaries in Mărgineni,
Tîrgu Jiu, Craiova and Aiud.
1. Applicant's description of the condition of
detention
- The
applicant described the cells in Jilava Penitentiary as overcrowded
and dirty, alleging that he contracted skin infections and scabies
and caught fleas.
- As
for Rahova Penitentiary, he claimed that he shared a 6 sq. m room
equipped with 10 beds with 11-13 other detainees. The room was
infested with bedbugs and the walls were mouldy. Warm water was
available once a week for one hour and heating was available in the
evenings for one hour. The cell was ventilated through a window, but
the door was constantly closed. The window pane was missing and the
inmates put up a blanket in order to cover it.
- Outdoor
exercise was allowed twice a week for one hour.
- The
food was bad, and meat was available only on Christian holidays and
in the event of inspections.
- The
detainees were taken for medical check-ups once a week and when
treatment was needed they were advised to seek medicine from their
families.
2. Government's description of the conditions of
detention
- The
Government provided official information, submitted by the
Penitentiary authorities, concerning the size and facilities of all
the cells that the applicant had occupied during his detention.
- In
Jilava, he stayed in the following cells: nos. 301, 209, 210, 310 and
314 which were all 32.99 sq. m in size and accommodated
19-44
inmates at the time; no. 510 which was 42.39 sq. m in size and
accommodated 41-44 inmates at that time; and in no. 308 which was
51.23 sq. m in size and accommodated 23 inmates.
The
official documents did not give the exact number of bunks per cell.
- Each
cell had a window and separate sanitary facilities with
two
toilets and a sink with drinking water. Hot water was available only
in a special bathing area where the inmates were taken once a week.
Each
winter heating was available between 1 November and 31 March,
according to a pre-established schedule.
- The
inmates were responsible for the cleaning of their cells, using
products put at their disposal by the penitentiary. Pest control
measures and insecticide treatments were carried out each trimester.
- The
applicant was allowed at least 30 minutes of outdoor exercise per
day.
- In
Rahova Penitentiary, the applicant shared a 19.55 sq. m cell with a
maximum of 9 co-detainees. It had 10 bunk beds. A 5.55 sq. m room
with a toilet and cold water was attached to the cell. Hot water was
available twice a week between 12 noon and 2 p.m. and 5 p.m. and 7
p.m. The cells and the toilets had windows.
- As
in Jilava, the inmates cleaned their own cells and pest control
measures were carried out each trimester.
Outdoor
exercise was allowed for one to two hours each day.
B. Medical care in prison
- According
to the prison medical record, the applicant was registered on 19
February 2001 as a drug user, with the last dose being taken eight
hours before the consultation. He was also recorded as suffering from
post traumatic stress, as a consequence of bone fractures
suffered in 1996.
On 21
and 23 February 2001 he was recorded as suffering from withdrawal
syndrome.
- From
28 February to 4 March 2001 he went on hunger strike.
On 29
May 2003 the applicant was taken to the medical care centre after
having attempted to commit suicide.
- Regular
check-ups were organised for the 1996 bone fractures. Several
investigations were undertaken in the context of his requests for
early release. On 5 February 2004 an orthopaedist in Jilava
Penitentiary Hospital recommended surgery to remove the internal
fixation (osteosynthesis) of the fractures. The repeated examinations
and expert reports by the penitentiary doctors and by the Mina
Minovici National Institute of Forensic Medicine (Institutul
Naţional de Medicină Legală Mina Minovici - “the
INML”) consistently concluded that adequate treatment and
surgical intervention were possible in the penitentiary medical
system.
However,
the applicant refused to be operated on in the penitentiary
hospitals.
- In
letters of complaint sent to various authorities and to the Court,
the applicant and his wife claimed that the painkillers that he had
received in prison had been insufficient for the pain associated with
his bone fractures. From 2006 the applicant was given additional
medicine for stomach ache, which he attributed to the painkillers
prescribed.
C. Requests for early release on medical grounds
- On
two occasions the applicant requested early release from prison on
medical grounds, arguing that the bone fractures he had suffered in
1996 needed further treatment.
- His
first request was rejected on 21 January 2004 by the Bucharest
District Court, based on a medical expert report of 20 January 2004
which had concluded that the applicant's conditions were treatable in
the penitentiary hospitals. The applicant appealed. A new expert
report ordered in the case also concluded that the applicant was
medically fit for detention. Therefore, on 24 June 2004 the Bucharest
County Court upheld the above judgment. The County Court also found
that, in so far as the applicant's conditions were treatable in the
penitentiary hospitals, his repeated requests to be treated in a
civilian hospital or abroad were an abuse of process.
- His
second request for release, filed with the Bucharest District Court
on 29 September 2005, was finally rejected on 19 April 2007, after
numerous postponements caused by the applicant's refusal to undergo a
medical examination. The expert report drafted on 26 March 2007 after
the applicant's examination concluded once again that his conditions
were treatable in the penitentiary hospitals.
II. RELEVANT DOMESTIC LAW
- The
domestic legislation on the execution of sentences, in particular Law
no. 23/1969, Emergency Ordinance no. 56/2003 (“Ordinance
no. 56/2003”) and Law no. 275/2006, is described in Petrea
v. Romania, no. 4792/03, §§ 21-23, 29 April 2008.
III. COUNCIL OF EUROPE DOCUMENTS
- The
relevant findings and recommendations of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (“the CPT”) are described in Bragadireanu
v. Romania, no. 22088/04, §§ 73-75, 6 December
2007, and Artimenco v. Romania (no.
12535/04, §§ 22-23, 30 June 2009). In particular,
the Court notes that in the report on the 2002-2003 visits, the CPT
expressed concern at the limited living space available to prisoners
and the insufficient space provided by the regulations in place at
that date. It also noted that prisoners were sometimes obliged to
share a bed and that the toilets were not sufficiently separate from
the living space.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained about the conditions of his detention in Jilava
and Rahova Penitentiaries as well as about the medical treatment he
received while he had been held in detention. He relied, in
substance, on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
- In
particular he complained that he had been in drug withdrawal at the
police headquarters, and had not been given medical assistance until
late in the night, when he had been taken to a hospital, and then
only after his inmates had alerted the guards to his state.
He
alleged a lack of medical care in prison for his bone fractures, in
terms of both the medicines received and the lack of surgical
intervention.
- He
also claimed that he had had to live in overcrowded cells, which were
infested with bugs and did not have adequate hygiene facilities.
A. Admissibility
- The
Government raised a preliminary objection of non-exhaustion of
domestic remedies in so far as the applicant had not complained to
the authorities about the conditions of his detention or the alleged
lack of medical treatment, either before or after the entry into
force of Ordinance no. 56/2003. In addition, they averred that
the applicant could have lodged
a civil law complaint against the
Penitentiary for the conditions of detention.
- The
applicant made no comments on this point.
1. Alleged lack of medical treatment
- The
Court has already had the opportunity to examine a similar objection
raised by the Government in the case of Petrea, cited above.
It concluded that before the entry into force of Ordinance no.
56/2003, on 27 June 2003, there was no effective remedy for the
situation complained of by the applicant. However, after that date,
persons in the applicant's situation had an effective remedy to
complain about the alleged lack of medical treatment even if their
applications had already been pending with the Court at the relevant
date (see Petrea, cited above, §§ 35-36).
- The
Court sees no reason to depart in the present case from the
conclusions it reached in Petrea.
- It
therefore considers that after the entry into force of Ordinance
no. 56/2003, the applicant should have lodged a complaint with
the domestic courts about the alleged lack of medical treatment. His
two requests for early release do not satisfy these conditions.
It
follows that the part of the complaint concerning the alleged lack of
medical treatment after 27 June 2003 should be rejected for
non-exhaustion of domestic remedies.
- As
for the period before the entry into force of Ordinance no. 56/2003,
the Court notes that the applicant complained about a specific
episode that had taken place in police custody, that is, the lack of
immediate medical assistance for his withdrawal symptoms. However,
that episode took place on 19 February 2001, whereas the applicant
lodged his complaint with the Court on 24 March 2003.
It
follows that this part of the complaint has been introduced out of
time and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention (see Koval v. Ukraine (dec.), no.
65550/01, 30 March 2004, and Treptow v. Romania (dec.), no.
30358/03, 20 May 2008).
- Lastly,
the Court finds no evidence in the file of any other potential breach
of the applicant's right to receive treatment while in detention
before the entry into force of Ordinance no. 56/2003.
In
the light of all the material in its possession, and in so far as the
matters complained of are within its competence, the Court finds that
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or its Protocols.
It
follows that this part of the complaint is manifestly ill-founded and
must be rejected in accordance with Article 35 §§ 3 and 4
of the Convention.
2. Conditions of detention
- In
the case of Petrea, cited above, the Court considered that no
effective remedy was available for the complaints concerning the
general conditions of detention (see Petrea, cited above,
§ 36).
- It
also notes that in so far as it concerns the conditions of detention,
and in particular the overcrowding and poor sanitary facilities, this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared
admissible.
B. Merits
- The
Government contended that the authorities had made all the necessary
efforts in order to ensure the applicant adequate detention
conditions and medical care.
- The
applicant made no further comments on this point.
- The
Court refers to the principles established in its case-law regarding
the conditions of detention (see, for instance, Kudła v.
Poland [GC], no. 30210/96, § 94, ECHR 2000-XI;
Mouisel v. France, no. 67263/01, § 40,
ECHR 2002-IX; and Sarban v. Moldova, no. 3456/05,
§§ 75-77, 4 October 2005).
- The
focal point in the instant case is the assessment by the Court of the
living space afforded to the applicant in Jilava and Rahova
Penitentiaries. The Government denied that the number of prisoners
per cell had exceeded that of beds per cell. However, even at the
occupancy rate indicated by the Government, the applicant's personal
space seems to have been consistently below 3 sq. m,, which falls
short of the standards imposed by the case-law (see Kokoshkina v.
Russia, no. 2052/08, § 62, 28 May 2009, and Orchowski
v. Poland, no. 17885/04, § 122, ECHR 2009 ...
(extracts)). The amount of outdoor exercise stated by the Government
cannot compensate, in the circumstances of this case, for the severe
lack of personal space (see, conversely, Sulejmanovic
v. Italy, no. 22635/03,
§§
8-49, 16 July 2009).
Moreover,
the applicant's description of the overcrowding corresponds to the
findings of the CPT (see paragraph 33 above).
- The
Court considers that as the parties' submissions about the sanitary
conditions corroborate the CPT reports, it cannot but conclude that
the applicant was deprived of the possibility to maintain adequate
bodily hygiene in prison.
- The
Court has frequently found a violation of Article 3 of the Convention
on account of the lack of personal space afforded to detainees and
unsatisfactory sanitary conditions (see, in particular, Ciorap
v. Moldova, no. 12066/02, § 70, 19 June 2007;
Kalashnikov v. Russia,
no. 47095/99, §§ 97 et
seq., ECHR 2002 VI; and Kokoshkina, § 64, and
Petrea, §§ 49-50, judgments cited above).
In
the case at hand, the Government failed to put forward any argument
that would allow the Court to reach a different conclusion.
- In
the light of the above, the Court considers that the conditions of
the applicant's detention caused him distress that exceeded the
unavoidable level of suffering inherent in detention and that
attained the threshold of degrading treatment proscribed by Article
3.
There
has accordingly been a violation of Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Alleged breach of the defence rights
- Invoking
in substance Article 6 §§ 1 and 3 (c) and (d) of the
Convention, the applicant complained of a breach of his defence
rights. He referred in particular to the fact that his initial
statements to the police had been made when he was experiencing drug
withdrawal symptoms and in the absence of a lawyer of his choice, and
that the courts had refused to hear key witnesses and had set aside
his defence submissions without proper justification.
- The
Government claimed that the applicant had not complied with the
six-month time-limit and stated that he should have been aware of the
content of the final decision at the latest when he had requested its
revision, that is more than six months before the lodging of this
application with the Court.
- The
applicant made no comments on this point.
- The
Court reiterates that the object of the six-month time-limit under
Article 35 is to promote legal certainty, by ensuring that cases
raising issues under the Convention are dealt with within a
reasonable time and that past decisions are not continually open to
challenge. The rule also affords the prospective applicant time to
consider whether to lodge an application and, if so, to decide on the
specific complaints and arguments to be raised (see, for example,
Worm v. Austria, 29 August 1997, §§ 32-33, Reports
of Judgments and Decisions 1997 V).
- The
Court notes that this application was lodged on 24 March 2003, that
is, nine months after the date when the final decision was adopted
(25 June 2002). The decision itself does not bear mention of the
date when it was actually available to the applicant.
The
Court has expressly asked the Government to provide this information,
which they have failed to do. While the Court finds the Government's
attitude regrettable, it cannot but notice that the applicant could
also have provided this information to the Court, at least after the
communication of the complaints to the respondent Government. In
principle, the domestic courts can issue, on simple request, a
certificate stating the date when the decision became available
(certificat de grefă).
- The
Court notes that the applicant was released from prison on 19 May
2009 and could equally have sought this information himself.
Moreover, since 12 October 2009 the applicant has been represented by
counsel, who became aware of the objection of non compliance
with the six-month rule at the latest when he received a copy of the
Government's observations (December 2009). The lawyer could have
requested the aforementioned certificate from the local courts.
- Therefore,
this is not one of the situations when the burden of proof is shifted
entirely on to the Government and the Court will not draw any
negative conclusions from the Government's silence.
- Considering
the case on the basis of the file as it stands, the Court notes that
the fact that the applicant lodged his request for revision on
30 August 2002 provides sufficient indication that he was
already
in possession of the full text of the final decision at
that date (see,
mutatis mutandis, Marin v. Romania,
no. 30699/02, §§ 24-28, 3
February 2009).
- It
therefore concludes that he lodged his complaint at least seven
months after the date when he had become aware of the content of the
final decision.
This
complaint has thus been introduced out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of
the Convention.
B. Fairness of the proceedings (requests for early
release)
- Lastly,
the applicant complained under Article 6 § 1 of the Convention,
invoked in substance, about the way in which his requests for early
release had been examined by the courts.
- However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
- The
applicant did not submit a claim for just satisfaction within the
time-limit set by the Court. Accordingly, there is no call to award
him any sum on that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the conditions
of detention (Article 3) admissible and the remainder of the
application inadmissible;
- Holds that there has been a violation of Article
3 of the Convention.
Done in English, and notified in writing on 1 June 2010, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
